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EXHIBIT 10.77
SEPARATION AND RELEASE AGREEMENT
This SEPARATION AND RELEASE AGREEMENT (the "Agreement"), executed this
8th day of August, 2000, is entered into by and between Fidelity Holdings, Inc.
(together with its subsidiaries and affiliates being collectively referred to
herein as the "Company") and Xxxxx Xxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive shall cease to be an employee of the Company as
of the Separation Date (as hereinafter defined);
WHEREAS, the Executive and the Company desire to settle fully and
finally any and all employment-related matters between them as of the Separation
Date, including, but not limited to, any issues that may arise out of the
Executive's employment with the Company and the termination thereof.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, intending to be legally bound, the parties
hereto hereby agree as follows:
Section 1. Termination of Employment; Benefits.
(1) Termination of Employment. The Executive's employment with
the Company shall terminate as of the close of business on June 30, 2000 (the
"Separation Date").
(2) Benefits. In consideration for the Executive's agreement to
be bound by the terms of this Agreement and subject to Section 13(a) hereof, the
Executive shall be entitled to receive from the Company the payments and
benefits set forth in subparagraphs (i) through (iv) of this Section 1(b).
(1) The Company agrees to pay the Executive:
(1) $250,000 on the eighth day after the
date hereof (the "Commencement Date");
(2) $250,000 in 12 monthly installments,
consisting of 11 monthly payments of $20,833.33 and a final monthly
payment of $20,833.37, such monthly payments to commence on July 1,
2001 and the final monthly payment to be made on June 1, 2002;
(3) $50,000 in 12 monthly installments,
consisting of 11 monthly payments of $4,166.66 and a final monthly
payment of $4,166.74, such monthly payments to commence on July 1, 2002
and the final monthly payment to be made on June 1, 2003;
(4) $50,000 in 12 monthly installments,
consisting of 11 monthly payments of
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$4,166.66 and a final monthly payment of $4,166.74, such monthly
payments to commence on July 1, 2003 and the final monthly payment to
be made on June 1, 2004;
(5) $50,000 in 12 monthly installments,
consisting of 11 monthly payments of $4,166.66 and a final monthly
payment of $4,166.74, such monthly payments to commence on July 1, 2004
and the final monthly payment to be made on June 1, 2005; and
(6) $500 per month for 24 months commencing
on July 1, 2000 and ending on June 1, 2002.
All payments pursuant to this Section 1(b)(i) shall be made by check of
the Company mailed to the Executive at the address set forth in Section 12
hereof on the dates specified above; provided, however, that if any such date is
not a Business Day, then payment shall be made on the next succeeding Business
Day; provided, further, that interest shall accrue at an annual rate of three
percent (3%) on any payment obligation pursuant to this Section 1(b)(i) which
remains unpaid by the Company more than 10 days following the due date for such
payment obligation; provided, further, that to the extent any such payment
obligation remains unpaid by the Company for five Business Days after written
notice is given by the Executive to the Company not less than 20 days following
the due date for such payment obligation, all payment obligations pursuant to
this Section 1(b)(i) that are then unpaid shall become immediately due and
payable on the day following such fifth Business Day.
(2) The Executive's outstanding indebtedness to the Company in
the amount of $1,048,067 shall be forgiven and deemed satisfied as follows:
one-third (1/3) on the third anniversary of the Separation Date, one-third (1/3)
on the fourth anniversary of the Separation Date and one-third (1/3) on the
fifth anniversary of the Separation Date; provided, however, that in the event
of a Change in Control of the Company, any remaining amount of such outstanding
indebtedness to the Company, to the extent not previously forgiven, shall be
forgiven and deemed satisfied as of the date of such Change in Control.
(3) For a period of two years beginning on the Commencement
Date, the Company will continue, at no expense to the Executive and at the
levels generally applicable to other executive officers of the Company as may be
changed by the Company from time to time, coverage of the Executive and the
Executive's spouse and dependents in the Company's health insurance plan.
(4) For a period of two years beginning on the Commencement
Date, the Executive shall be entitled to retain possession and use of the
automobile provided to the Executive by the Company immediately prior to the
Separation Date or a substantially similar automobile. During such two year
period, all expenses related to the possession and use of such automobile by the
Executive shall be borne by the Executive with the exception of expenses related
to repairs (excluding normal wear and tear) and insurance, which shall be borne
by the Company during such period. Immediately following the end of such two
year period, the Executive shall return such automobile to the Company.
Section 2. Mutual Release.
(1) Release by the Executive.
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(1) The Executive knowingly and voluntarily releases and
forever discharges the Company and the Company's parents, subsidiaries and
affiliates, together with all of their respective past and present directors,
managers, officers, partners, employees and attorneys, and each of their
predecessors, successors and assigns, and any of the foregoing in their capacity
as a shareholder or agent of the Company (collectively, "Releasees") from any
and all claims, charges, complaints, promises, agreements, controversies, liens,
demands, causes of action, obligations, damages and liabilities of any nature
whatsoever, known or unknown, suspected or unsuspected, which against them the
Executive or his executors, administrators, successors or assigns ever had, now
have, or may hereafter claim to have against any of the Releasees by reason of
any matter, cause or thing whatsoever arising on or before the Separation Date
and whether or not previously asserted before any state or federal court or
before any state or federal agency or governmental entity (the "Release"). The
Release includes, without limitation, any rights or claims relating in any way
to the Executive's employment relationship with the Company or any of the
Releasees, or the termination thereof, or arising under any statute or
regulation, including the Age Discrimination in Employment Act of 1967, Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans
with Disabilities Act of 1990, the Employee Retirement Income Security Act of
1974, and the Family Medical Leave Act of 1993, each as amended, or any other
federal, state or local law, regulation, ordinance or common law, or under any
policy, agreement, understanding or promise, whether written or oral, formal or
informal, between any of the Releasees and the Executive.
(2) Nothing herein shall be deemed to release any of the
Executive's rights under this Agreement.
(3) The Executive represents that the Company has advised
him to consult with an attorney of his choosing prior to signing this Agreement.
The Executive further represents that he understands and agrees that he has the
right and has in fact reviewed this Agreement and, specifically, the Release,
with an attorney of the Executive's choice. The Executive further represents
that he understands and agrees that the Company is under no obligation to offer
him this Agreement, and that the Executive is under no obligation to consent to
the Release, and that he has entered into this Agreement freely and voluntarily.
(4) The Executive shall have 21 days to consider this
Agreement and once he has signed this Agreement, the Executive shall have seven
additional days from the date of execution to revoke his consent to the Release
set forth above. Any such revocation shall be made by delivering written
notification to the Chairman of the Board of Directors of the Company and the
Chairman of the Audit Committee of the Board of Directors of the Company. In the
event that the Executive revokes his Release, all the terms of the other
sections and subsections of this Agreement, other than Section 1(a) hereof,
shall be null and void and shall not become effective. If no such revocation
occurs, the Release and this Agreement shall become effective as of the eighth
day after the date the Executive signs this Agreement.
(2) Release by the Company. Except as provided below, as a
material inducement to enter into this Agreement, the Company, on its behalf and
that of its affiliates and their officers and directors, agents, employees,
successors and assigns (solely in their capacity as officers or directors of the
Company) hereby knowingly and voluntarily releases and forever discharges the
Executive and his agents, employees, successors, heirs, beneficiaries or assigns
(the "Executive Released Parties") from any and all claims, charges, complaints,
promises, agreements, controversies, liens, demands, causes of action,
obligations, damages and liabilities of any nature whatsoever that it had, now
has, or may hereafter claim to have against the Executive Released Parties
arising out of or relating in any way to the
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Executive's employment relationship with the Company, whether or not previously
asserted before any state or federal court or before any state, federal or
regulatory agency or governmental entity; provided, however, that neither the
Executive nor any of the Executive Released Parties shall be released or
discharged from any such claim, charge, complaint, promise, agreement,
controversy, lien, demand, cause of action, obligation, damage or liability
which arises in whole or in part out of or relates in any way to the willful
misconduct or gross negligence of the Executive or any of the Executive Released
Parties.
Section 3. Mutual Non-Disparagement. The Executive agrees that he will
not make or publish any statement which is, or may reasonably be considered to
be, disparaging of the Company, the Company's subsidiaries or affiliates, or
directors, officers or employees of the businesses of the Company or any of the
Company's subsidiaries or affiliates. The Company agrees that it will not make
or publish any statement which is, or may reasonably be considered to be,
disparaging of the Executive.
Section 4. Confidentiality; Intellectual Property; Disclosure.
(1) Following the Separation Date, the Executive shall keep
secret and retain in strictest confidence, any and all Confidential Information
(as hereinafter defined) relating to the Company. For purposes of this
Agreement, "Confidential Information" shall mean any confidential or proprietary
information including, without limitation, plans, specifications, models,
samples, data, customer lists and customer information, computer programs and
documentation, and other technical and/or business information, in whatever
form, tangible or intangible, printed, electronic or magnetic, that can be
communicated by whatever means available at such time, that relates to the
Company's business during the period the Executive served as an executive
officer of the Company, products, services and/or developments, or information
received from others that the Company is obligated to treat as confidential or
proprietary, and the Executive shall not disclose such Confidential Information
to any person other than the Company, except as may be required by law or court
or administrative order (in which event the Executive shall so notify the
Company as promptly as practicable). The Executive shall promptly return to the
Company reproductions and summaries of Confidential Information in his
possession or control and erase the same from all media in his possession or
control, and, if the Company so requests, shall certify in writing that he has
done so. All Confidential Information is and shall remain the property of the
Company, or in the case of information that the Company receives from a third
party which it is obligated to treat as confidential, the property of such third
party.
(2) All Intellectual Property (as hereinafter defined) created,
developed, co-developed, obtained or conceived of by the Executive during the
period the Executive served as an executive officer of the Company shall be
owned by and belong exclusively to the Company, provided that they reasonably
relate to any of the business of the Company on the date of such creation,
development, obtaining or conception, and the Executive shall (i) promptly
disclose any such Intellectual Property to the Company, and (ii) promptly
execute and deliver to the Company, without additional compensation, such
instruments as the Company may require from time to time to evidence its
ownership of any such Intellectual Property (the "Intellectual Property
Documents"). If the Company is unable because of the Executive's mental or
physical incapacity or for any other reason to secure the Executive's signature
for any Intellectual Property Document, then the Executive hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as his agent and attorney in fact, to act for and in his behalf and stead to
execute and file any Intellectual Property Document and to do all other lawfully
permitted acts to evidence or perfect the Company's ownership and rights of and
to any Intellectual Property or business opportunity with the same legal force
and effect as if executed by the Executive. For purposes of this Agreement, the
term "Intellectual Property" means any and all of the
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following and all statutory and/or common law rights throughout the world in,
arising out of, or associated therewith: (i) all patents and applications
therefor, including docketed patent disclosures awaiting filing, reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether patentable or not),
inventions disclosures and improvements, all trade secrets, confidential
business information (including ideas, research and development, know-how,
compositions, designs, specifications, pricing and cost information and business
and market plans and proposals), proprietary information, manufacturing,
engineering and technical drawings and specifications, processes, designs and
technology; (iii) all works of authorship, "moral rights," copyrights (including
derivative works thereof), mask works, copyright and mask work registrations and
applications therefor; (iv) all trade names, trade dress, logos, product names,
collective marks, collective membership marks, trademarks certification marks
and service marks, trademark and service xxxx registrations and applications
together with the goodwill of the business symbolized by the names and the
marks; (v) all data and related documents, object code, databases, passwords,
encryption technology, firmware, development tools, files, records and data, and
all media on which any of the foregoing is recorded; (vi) any similar,
corresponding or equivalent rights to any of the foregoing; (vii) all
documentation related to any of the foregoing; and (viii) all goodwill
associated with any of the foregoing.
Section 5. Non-Competition; Non-Solicitation.
(1) During the period commencing on the Separation Date and
expiring two years following the Separation Date (the "Automotive Noncompetition
Period"), the Executive shall not, directly or indirectly, own, manage, operate,
control or participate in the ownership, management, operation or control of, or
be connected as an officer, employee, consultant, partner, or director with, any
business conducted anywhere in any State within the eastern half of the United
States of America which is or which becomes during the Automotive Noncompetition
Period directly or indirectly competitive with the Automotive Division of the
Company (as such division is described in the Company's Form 10K-SB for the
Company's fiscal year ended December 31, 1999), as the same is conducted as of
the Separation Date (each such business, a "Competitive Automotive Operation").
During the Automotive Noncompetition Period, ownership by the Executive of not
more than 5% of the equity securities of any Competitive Automotive Operation
shall not constitute a violation of this Section 5(a).
(2) During the period commencing on the Separation Date and
expiring three and one-half years following the Separation Date (the "Technology
Noncompetition Period"), the Executive shall not, directly or indirectly, own,
manage, operate, control or participate in the ownership, management, operation
or control of, or be connected as an officer, employee, consultant, partner, or
director with, any business conducted anywhere in North America which is or
which becomes during the Technology Noncompetition Period directly or indirectly
competitive with the Technology Division of the Company (as such division is
described in the Company's Form 10K-SB for the Company's fiscal year ended
December 31, 1999), as the same is conducted as of the Separation Date (each
such business, a "Competitive Technology Operation"). During the Technology
Noncompetition Period, ownership by the Executive of not more than 5% of the
equity securities of any Competitive Technology Operation shall not constitute a
violation of this Section 5(b).
(3) During the period commencing on the Separation Date and
expiring three and one-half years following the Separation Date (the
"Nonsolicitation Period"), the Executive shall not, directly or indirectly,
solicit, interfere with, hire or offer to hire any person who is or was an
employee of the Company during the 12-month period prior to the Separation Date,
or induce such person to discontinue his or her relationship with the Company or
to accept employment by, or enter into a business
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relationship with, the Executive or any other entity or person; provided,
however, that the Executive may offer employment to Xxxxxxx Xxxxxxxxx during the
Nonsolicitation Period if her employment with the Company is terminated for any
reason during the Nonsolicitation Period. During the Nonsolicitation Period, the
Executive shall not, directly or indirectly, (i) solicit, interfere with, induce
or entice away any person or entity that is or was a client, customer or agent
of the Company during the 24-month period prior to the Separation Date, with
respect to any product or service which is directly or indirectly competitive
with the Automotive Division or the Technology Division, as the same are
conducted as of the Separation Date, or (ii) in any manner persuade or attempt
to persuade any such person or entity (A) to discontinue a business relationship
with the Company or (B) to enter into a business relationship with the Executive
or any other entity or person which would be adverse to the interests of the
Automotive Division or the Technology Division.
In the event any restriction against engaging in a competitive activity
contained in this Section 5 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its extending for too great a
period of time or over too great a geographical area or by reason of its being
too extensive in any other respect, it shall be interpreted to extend only over
the maximum period of time for which it may be enforceable, over the maximum
geographical area as to which it may be enforceable and to the maximum extent in
all other respects as to which it may be enforceable, all as determined by such
court in such action.
Section 6. Knowledge of Claims. The Executive represents and warrants
that, to the knowledge of the Executive, there is no reasonable basis for any
third party to assert any claim against the Company or any of the Company's
parents, subsidiaries or affiliates, or any of the past or present officers or
directors of any of the forgoing (including the Executive) acting in their
capacities as such, under federal, state or local law, including a breach of any
applicable duty under common law. Except as set forth on Exhibit A hereto, the
Executive further represents and warrants that, to the knowledge of the
Executive, there are no claims, actions, suits, investigations or proceedings
threatened against the Company or any of the Company's parents, subsidiaries or
affiliates, or any of the past or present officers or directors of any of the
forgoing (including the Executive) acting in their capacities as such, under any
federal, state or local law, including a breach of any applicable duty under
common law. The Executive further represents and warrants that there is no
reasonable basis for the Company to assert any claim against the Executive for
violation of any federal, state, or local law, or breach of any applicable duty
under common law.
Section 7. Cooperation. Subject to the provisions of Section 10 hereof,
the Executive agrees that he will fully cooperate in any litigation in which the
Company or any of the Company's parents, subsidiaries and affiliates may become
involved. Such cooperation shall include the Executive making himself available,
upon the request of the Company, for depositions, court appearances and
interviews by Company's counsel. To the maximum extent permitted by law, the
Executive agrees that he will notify the Chairman of the Board of Directors of
the Company and the Chairman of the Audit Committee of the Board of Directors of
the Company if he is contacted by any government agency or any other person
contemplating or maintaining any claim or legal action against the Company or
any of the Company's parents, subsidiaries and affiliates, or by any agent or
attorney of such person.
Section 8. Proceedings. The Executive has not filed, and agrees not to
initiate or cause to be initiated on his behalf, any complaint, charge, claim or
proceeding against the Company before any local, state or federal agency, court
or other body relating to his employment or the separation or
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termination of his employment, other than with respect to the obligations of the
Company to the Executive under this Agreement, (each individually, a
"Proceeding"), and agrees not to voluntarily participate or join in any
Proceeding.
Section 9. Standstill.
(1) The Executive covenants to and agrees with the Company that
from and after the date hereof until the fifth anniversary of the Separation
Date (the "Standstill Period"), without the Company's prior written consent, the
Executive will not, directly or indirectly:
(1) Make any public announcement with respect to, or submit
to the Company or any of its respective directors, officers, representatives,
trustees, employees, attorneys, advisors, agents or Affiliates, any proposal
for, the acquisition of any Voting Securities or with respect to any merger,
consolidation, business combination or purchase of any substantial portion of
the assets of the Company, whether or not any parties other than the Executive
is involved, and whether or not such proposal might require the making of a
public announcement by the Company;
(2) Seek or propose to influence, advise, change or control
the management, board of directors, governing instruments or policies or affairs
of the Company, or make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are defined or used in Regulation 14A under the
Exchange Act, to vote any Voting Securities or become a "participant" in any
"election contest" (as such terms are defined and used in Regulation 14A and
Schedule 14A under the Exchange Act) with respect to Voting Securities;
(3) Deposit any Voting Securities in a voting trust or
subject any Voting Securities to any arrangement or agreement (other than this
Agreement) with respect to the voting of such Voting Securities or any other
agreement having similar effect;
(4) Form or join a partnership, limited partnership,
syndicate or other group (as defined in Section 13(d)(3) of the Exchange Act)
with respect to any Voting Securities; or
(5) Other than a non-public request to waive the provisions
of clause (i) of this Section 9(a), make a request to amend or waive any
provision of this Section 9(a).
(2) The Executive represents and covenants to the Company that,
as of the date of this Agreement, the Executive Beneficially Owns 2,992,054
shares of common stock, par value $.01 per share, of the Company ("Company
Common Stock"). At any meeting of the stockholders of the Company during the
Standstill Period at which any matter is submitted to a vote of such
stockholders, or with respect to any matter as to which written consents are
sought, in lieu of a meeting of shareholders, the Executive shall take all
necessary steps to cause all shares of Company Common Stock as to which the
Executive Beneficially Owns to be voted in accordance with the recommendation of
the majority of the Board of Directors of the Company provided that such
majority includes a majority of the non-employee directors of the Company.
Section 10. Indemnification. From and after the Separation Date, the
Company shall indemnify, defend and hold harmless the Executive against all
costs or expenses (including reasonable attorneys' fees), judgments, fines,
losses, claims, damages or liabilities (collectively, "Costs") incurred in
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connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, arising out of actions or
omissions of the Executive occurring prior to the Separation Date, which is
based upon or relates to the Executive's capacity as a director or officer of
the Company, to the fullest extent the Executive is permitted to be indemnified
under the Company's Articles of Incorporation and Bylaws as in effect on the
date of this Agreement. In the event of any such threatened or actual claim,
action, suit, proceeding or investigation (whether asserted or arising before or
after the Separation Date), the Executive may retain counsel reasonable
satisfactory to the Executive and the Company; provided, however, that (1) the
Company shall have the right to assume the defense thereof and upon such
assumption the Company shall not be liable to the Executive for any legal
expenses of other counsel or any other expenses subsequently incurred by the
Executive in connection with the defense thereof, except that if the Company
elects not to assume such defense, or counsel for the Executive reasonably
advises the Executive that there are issues which raise conflicts of interest
between the Company and the Executive, the Executive may retain counsel
reasonably satisfactory to the Executive and the Company, and the Company shall
pay the reasonable fees and expenses of such counsel for the Executive and (2)
the Company shall not be liable for any settlement effected without its prior
written consent; provided, further, that nothing in this Section 10 shall
prevent the Executive from retaining separate counsel with the prior written
consent of the Company which consent shall not be unreasonably withheld. If the
Executive wishes to claim indemnification under this Section 10, upon learning
of any such claim, action, suit, proceeding or investigation, the Executive
shall promptly notify the Company thereof, provided that the failure to notify
shall not affect the obligation of the Company under this Section 10 except to
the extent such failure to notify materially prejudices the Company. The
Company's obligations under this Section 10 shall continue in full force and
effect for a period of six years after the Separation Date; provided that all
rights to indemnification in respect of any claim, action, suit, proceeding or
investigation made, asserted or commenced with such six year period shall
continue until the final disposition of such claim, action, suit, proceeding or
investigation.
Section 11. Certain Defined Terms. For purposes of this Agreement, the
following terms shall have the following meanings:
(1) "Affiliate" or "Affiliates" shall mean, with respect to any
Person, any other Person which directly or indirectly controls or is controlled
by or is under common control with such Person (as used in this definition,
"control" (including its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise)).
(2) "Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
(3) "Beneficial Ownership" or "Beneficially Own" shall mean any
securities of which a Person or any such Person's Affiliates is considered to be
a Beneficial Owner or of which such Person or any of such Person's Affiliates or
associates, directly or indirectly, has the right to acquire (whether such right
is exercisable immediately or only after the passage of time or upon the
satisfaction of conditions) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or otherwise, it being
understood and agreed that Xxxxx Xxxxxxx shall be deemed to Beneficially Own
securities held in trust for the benefit of Xxxxx Xxxxxxx or any member of his
immediate family.
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(4) "Business Day" shall mean any day, other than a Saturday,
Sunday or a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
(5) "Change in Control" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall have occurred:
(i) Xxxxx Xxxxxxx ceases to Beneficially Own of at least 15%
of the combined voting power of the Company's then outstanding securities; or
(ii) any Person is or becomes the Beneficial Owner, directly
or indirectly, of securities of the Company (not including in the securities
Beneficially Owned by such person any securities acquired directly from the
Company or its affiliates) representing 50% or more of the combined voting power
of the Company's then outstanding securities, excluding any person who becomes
such a Beneficial Owner in connection with a transaction described in clause
(iii)(A) below; or
(iii) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with any other
corporation, other than (A) a merger or consolidation which results in the
directors of the Company immediately prior to such merger or consolidation
continuing to constitute at least a majority of the board of directors of the
Company, the surviving entity or any parent thereof immediately after such
merger or consolidation; or (B) a merger or consolidation effected to implement
a recapitalization of the Company (or similar transaction) in which no Person is
or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company (not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company or its Affiliates) representing
50% or more of the combined voting power of the Company's then outstanding
securities.
Notwithstanding the foregoing, a "Change in Control" shall not
be deemed to have occurred by virtue of the consummation of any transaction or
series of integrated transactions (x) immediately following which the record
holders of the common stock of the Company immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the
Company immediately following such transaction or series of transactions or (y)
in which Xxxxx Xxxxxxx or any Person controlled by Xxxxx Xxxxxxx Beneficially
Owns 50% or more of the combined voting power of the Company's then outstanding
securities.
(6) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(7) "Person" shall mean an individual, corporation, association,
partnership, group (as such term is used in Section 13(d)(3) of the Exchange
Act), trust, joint venture, business trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
(8) "Voting Securities" shall mean at any time shares of any
class of capital stock of the Company which are then entitled to vote generally
in the election of directors or any securities which are convertible into, or
exchangeable or exercisable for, any such shares.
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Section 12. Notice. For purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid as follows:
If to the Company:
Fidelity Holdings, Inc.
00-00 Xxx Xxxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxx Xxxx 00000
Attention: Chairman of the Board of Directors and
Chairman of the Audit Committee of the Board of
Directors
If to the Executive:
00 Xxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Rimberg & Associates, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
Section 13. Miscellaneous.
(1) Enforcement; Governing Law; Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without regard to its conflicts of law principles. The Company shall
have the right, without prejudice to any other rights or remedies it might have
under the law which are reserved, to obtain injunctive relief to restrain any
breach or threatened breach by the Executive of this Agreement or otherwise to
specifically enforce any provision of this Agreement; provided, however, that
such right to injunctive relief does not preclude the Company from seeking
monetary damages for a breach by the Executive of this Agreement; provided,
further, that in the event of a breach by the Executive of any representation,
warranty, covenant or agreement contained in this Agreement, the Company shall
be entitled to suspend any payments and benefits set forth in Section 1(b) above
not yet paid or provided to the Executive after providing the Executive notice
of such breach and the Company shall be permanently relieved of the Company's
obligations under Section 1(b) above if the Executive does not cure such breach
within 30 days of the date the Company provided such notice to the Executive;
and provided, further, that in the event the Company's obligations under Section
1(b) above are suspended or relieved pursuant to the preceding proviso, the
Company shall not be precluded from seeking monetary damages from the Executive
that exceed the amount of the Company's obligations under Section 1(b) above
that are suspended or relieved pursuant to the preceding proviso.
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(2) Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
(3) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(4) Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes any and all prior agreements, and understandings, both
written and oral, between the parties hereto with respect to the subject matter
hereof except as otherwise provided herein.
(5) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect.
(6) Successors. This Agreement shall be binding upon and shall
inure to the benefit of each of the parties hereto, and their respective heirs,
legatees, executors, administrators, legal representatives, successors and
assigns. The provisions of Section 2(a) hereof are intended to be for the
benefit of, and shall be enforceable by, each Releasee and his, her or its,
heirs and representatives.
(7) Withholding. All payments made by the Company to the
Executive pursuant to Section 1(b) of this Agreement shall be reduced by all
federal, state, city or other taxes that are required to be withheld pursuant to
any law or governmental regulation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
FIDELITY HOLDINGS, INC.
By: XXXXX XXXXX
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Name:
Title:
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EXHIBIT A
The following could be construed as threatened claims:
Xxxxxxxx Xxxxxx
Xxxxx Xxxxx
Master Agents
Class actions
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